Law

As part of the Walt Whitman course I’m taking online, I watched a fascinating interview between Supreme Court Justice Elena Kegan and Harvard professor Elisa New. I’ve often blog about court decisions, but I’ve rarely thought about them as a literary form and the interplay of court decisions and other literature.

At one point, Justice Kagan, speaking about a poem said,

So reading this made me think a little bit harder about what I was seeing every day, in a way, that I guess, great poetry can do-- is to make you notice things that you don't notice in the world.

It struck me that we need Judges and Justices that read poetry; that notice things that normally aren’t noticed.

In another section she talks about quoting other judges

All the time, I use what other judges have said. And if I'm a judge and I have this amazing quote from Louis Brandeis-- man, I make sure to use that quote, right? Because it's an amazing quote, and because Louis Brandeis said it gives me a kind of credibility.

It was a wonderful discussion.

Today, I have been cleaning up some of the dangling fragments of ideas for blog posts on my computer. There are so many ideas bouncing around in my head that I would like to explore. I decided I would write a blog post exposing and exploring some of these ideas.

I was going to title the post something like, palimpsest. It is a wonderful word, dating back to Cicero, talking about writing over something, such as on a parchment that has been scraped off and is being reused.

Yet the idea of palimpsest that I always go to is from Judge John Woolsey in his decision about James Joyce’s Ulysses.

Joyce has attempted — it seems to me, with astonishing success — to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man’s observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious.

It is such a wonderful quote, and I often think about this blog, with its ever-shifting kaleidoscopic impressions and the penumbral zone residua of my own past impressions, sometimes written about, sometimes, just in fragments, sometimes not even yet in fully formed thoughts.

But now, I’ve written my blog post of the day, exploring literature, legal decisions, and the plastic palimpsest underlying my own blog, so I’ll have to explore the incomplete fragments in a later post.

I saw the best minds of my generation destroyed by madness.
The angry fix they sought was far different from that of Ginsberg's friends.
These hipsters were typing something other than 'starry dynamo' into the search engines.
They were Google mapping the seats of power at midday, not the negro streets at dawn.
They were fighting a in new revolution, a revolution that would take their life and liberty.

A junkie with a knife can be scary. He'll take the cash in your pockets and rush off for his fix,
leaving you shaken as you walk home. But a hacker with a mission, now that is dangerous.
He will shake the very means of production and distribution, the economy you depend upon
to get that cash into your pockets.

It's all well and good when they take down an Arab dictator.
It's tolerable when they change the news media and political process, as long as it can be co-opted by the press and politicians.

But when they start threatening the profitability of the legal and academic presses in the greatest democracy of the world, they must be hounded, driven underground, labeled hacker and felon, until they kill themselves.

Yesterday, as I wrote about institutionalized racism in America, I asked the question, "Is there something we should be learning from Sandy Hook or the death of Aaron Swartz?" Perhaps part of the answer is that we are in the midst of a digital revolution, and sometimes heroes die during revolutions.

Typically, people talk about the digital revolution the way they talk about the industrial revolution, moving from one mode of production and distribution to another. Yet with any revolution, there is upheaval. There are winners and there are losers. Are we seeking to make the digital revolution as equitable as possible? What happens to the losers? How do they fight to avoid losing any privileges they had prior to the revolution?

I think these are all important questions to ask as we think about Aaron Swartz, for it seems that much of what he fought for was to make the digital revolution as equitable as possible. How do we make information as accessible to all people as possible?

If we look at PACER or JSTOR, we see similar patterns. There were means of production and distribution that made sense in the time of the printing press. Much of the information in court papers and academic journals was produced using taxpayer money and should be available to everyone for little more than the cost of production. Prior to the digital revolution, there was one cost structure for producing and distribution information in systems like PACER or via JSTOR. As the cost of production and distribution of electronic reports plummeted, some people were benefiting from the cost differences and others were being left out.

The prosecution of Aaron Swartz was an effort by the losers in the digital revolution to cling to power. The idea of Aaron Swartz as the epitome of the digital native, confronting U.S. District Attorney Carmen Ortiz, an up and coming political figure defending the status quo as the epitome of the digital immigrant is a compelling narrative.

The article shows images of tweets, alleged to be from the husband of U.S. Attorney Carmen Ortiz, where he goes after some of the thought leaders in the digital revolution such as Mitch Kapor and Dan Gillmor. Yes, the battle lines have been drawn and President Obama is caught right in the middle.

Meanwhile, another blog post says, OK, But Can We Also Fire Lanny Breuer?. Perhaps U.S. Attorney Ortiz was just an ambitious foot soldier caught in the cross fire. Perhaps the General that needs to be taken out is the Department of Justice's Criminal Division head, Lanny Breuer.

We are seeing Congressional approval rates plummet, the approval rating of the Supreme Court slip, and one has to wonder what happens to the approval ratings of the Justice Department as the Swartz affair just adds more damage to a tarnished agency.

Yes, we are in the midst of a digital revolution. It is about changes in the modes of production and distribution, but it is shaking up power structures and real people, good people, are getting hurt in the cross fire.

"Some days it seemed like all there was was gray". With those words, Aaron Swartz started off a blog post about his relationship with Quinn Norton. This morning, I started off my blog post about driving to a funeral with, "It was a grey January morning as I climbed into my black 1997 Nissan Altima and headed north".

It seems appropriate that my RSS feed is full of posts about Aaron Swartz who help with the creation of RSS. The posts are by some of the bloggers I respect most, David Weinberger, Ethan Zuckerman, and Larry Lessig to name a few.

I don't have stories of meeting Aaron when he was 14 or of him staying at my house at some point. I'm not sure if I ever met him, but given our mutual friends and mutual interests, I suspect we probably met somewhere along the way.

Yet Aaron's death hits me hard. Perhaps it is because of the recent death of my mother and of my cousin. Perhaps it is because now, more than ever, we need people like Aaron fighting for open access to information on the internet, in the courts and in our government.

I think this brings up an important point. How does an ISP have “actual knowledge of specific infringements”? Is an allegation of infringement by copyright holder in a takedown notice sufficient? Should the creator of the derivative work be afforded due process in determining whether or not their work is in fact an infringement or is fair use?

I commented on the MediaPost article,

I applaud Vimeo for supporting due process and I hope an important precedent can be established in this case. As I understand the safe harbor law, when a company knows about an infringement, they need to take down the offending content. Unfortunately, many companies take down content, not when they know that it is infringing, but simply when someone alleges that it is infringing. By respecting due process, web platforms should wait to take down alleged infringing content until after it has been determined in the courts to in fact be infringing. Whether or not lip dubbing is fair use, Vimeo cannot know that the alleged infringing content is in fact infringing content until a judge rules on it. If all web platforms would be so responsible and wait until infringements are ruled upon in the courts, it would significantly deter the reckless allegations of many copyright holders.